The van Dams initially claimed that their dog, a female Weimaraner, cannot bark. Even though they subsequently moderated this claim to her rarely barking, skepticism remains. So I was interested when I saw an article titled “15 Dog Breeds That Hardly Ever Bark”, and wondered if Weimaraners were one of them. They’re not. So I remain skeptical.http://topfamilymag.com/15-dog-breed...dly-ever-bark/

This article is about the San Diego Police Department Crime Lab, and is mainly on the Danielle van Dam case (hence the title). The author is employed by the District Attorney’s office, and quotes the lead prosecutor on that case (whom you can’t expect to be impartial), as well as the Crime Lab’s manager (the media named some of his laboratory staff who firmly believed Westerfield guilty). So, not surprisingly, her article is full of praise for that lab, and the “talent and professionalism” of its staff. Do they deserve that praise? I thought they did a poor job. So I will examine that question. But to do so, I need to look closely at how they processed the physical evidence in that case, and Neil’s article actually says very little about that: it’s mainly about which units comprised the lab, who was in the unit, and who did what for the case. The last portion of the article is mainly about the TV show CSI.

The Crime Lab did a lot of work on this case, so my examination of their work is proving very time-consuming, and I’m going to split my response into sections, posting on one unit at a time over the coming days (or weeks!). I will use examples to show why I think they did a poor job.

(The link to this edition of the magazine was: http://www.sdcda.org/office/leq_02_winter.pdf. It’s not currently working. I see the magazine ceased publication in 2006, but resumed in 2016. The new link is http://www.leqmagazine.com/ , but this doesn’t currently include the older issues. However, I did get the message “This page is being updated. Please come back soon.” So maybe the older issues will become available again in the not too distant future.)

These are the people who go to the scene of the crime, and so would be the first members of the Crime Lab to work on a case.

Neil’s article states that the Forensic Specialists worked separate locations to avoid cross-contamination - one (Dorie Savage) handled collection of evidence from the van Dam home, while the other (Karen Lealcala) handled collection from Westerfield’s environment (his home, SUV and motor home). However, Savage didn’t only collect evidence from the van Dam home, but also from Westerfield's SUV (the next morning) and the body recovery site. And on the day Danielle’s body was discovered, Lealcala was initially in Westerfield's motor home, then went to the body recovery site later that same day, where she was right next to the body, and could have transferred evidence, particularly those blue fibers (see below), which might even have come from something of hers. Even Annette Peer (a Criminalist) could have transferred trace evidence, when she went from his house to his motor home that same afternoon. (Some of the detectives were similarly at more than one site, as was at least one other Forensic Specialist, Ruben Inzunza, who wasn’t mentioned in the article.)

When Savage testified, she used a diagram of Danielle’s bedroom. Didn’t they take sufficient photos of the scene? And she didn’t know which photos were from which date.

They initially found and lifted five fingerprints from his motor home. They took two lifts of the last print they found. This was later identified to be Danielle’s print. It seems that somehow they knew this was hers, and that’s why they stopped looking after finding this one and why they took two lifts of it. There were many other prints in the motor home, but these weren’t lifted until much later (and that was done by the Latent Print Examiner, Jeff Graham). It seems that somehow they knew that none of these other prints were from her.

I’m not aware of them searching for fibers from Danielle in his environment, apart from carpet fibers. One would have expected them to search for fibers from her pajamas and bedding, given that she was kidnapped at night from her bed. And one would have expected the search for fibers from her carpet to have been conducted throughout his environment, but the only testimony I’ve seen was that they searched his motor home, and his laundry, dry-cleaning and shoes (and they only examined his shoes on February 13). Lealcala did collect samples of his living room carpet, but that was apparently for comparison with the fibers found in his motor home. They didn’t collect samples from neighboring houses in that development, which might have had the same carpets as the van Dams. They apparently didn’t even collect samples from other rooms in Danielle’s own home, only her bedroom.

When Danielle’s body was found, there were a number of blue fibers (short, blue-gray nylon) found with it, and one orange fiber (long, acrylic) tangled in her hair. There were many other fibers found with the body, including red fibers with her fingernails (including one round, delustered rayon fiber, and one polyester fiber), and a couple of very small pieces that looked like blue paint. They searched Westerfield’s environment for matching orange fibers and blue fibers, but only part of his environment (his laundry) for red fibers, and searched only a few items from her environment (her bedding, and not even all her bedding) for orange fibers, and apparently didn’t search her environment for any of the other fibers. They apparently didn’t do any searching for blue paint. Nor did they examine his shoes for soil or vegetation which might have come from the body recovery site.

(Some of the above searching was done by Forensic Specialists at the scenes, and other searching was by Criminalists in the Crime Lab of items which had been brought to them.)

There was a lot of evidence they didn’t find, such as her blood in his house and his DNA in hers, but that was probably because there wasn’t any such evidence to find rather than any failure on their part.

Although fingerprint evidence is treated as infallible, proof positive, in fact errors have been made. There is even some evidence suggesting that fingerprint examiners may match prints to the wrong person as much as 20% of the time. The Wikipedia article “Fingerprint” mentions a proficiency test in which only 44% of the 156 people taking the test correctly classified all seven latent prints; overall, the tests contained a total of 48 incorrect identifications. The article names several people who were wrongfully imprisoned as a result of flawed fingerprint identification. One judge, Susan Souder, even ruled that fingerprint evidence is not reliable enough to be used against a homicide defendant.

False matches can result from the examiner’s bias and peer pressure. And those dangers were certainly present in this case. Many people in the community, and many in law enforcement including Crime Lab personnel, firmly believed Westerfield guilty - after all, he had already been arrested! They would not have been happy had the Latent Print Examiner (Jeff Graham) concluded that there was not a match.

The match of the fingerprint in Westerfield’s motor home was made to Danielle on the area at the rear of the knuckles, so not on the fingertips as is much more common. Graham didn’t find that area of her fingers among the many fingerprint traces in her room, implying that you wouldn’t expect to find such prints very often - he explained because it was such a small and low section. There doesn’t seem to be as much variation in that area, so the question arises as to whether such matches are as reliable as fingertip matches. No evidence was produced that they are. And the match was made on rehydrated skin. Again, are such matches as reliable as fingertip matches? No evidence was produced. I’m concerned at the possibility of distortion caused by the rehydration and flattening processes.

The examiner said he began the process of comparing Danielle’s print with the one in the motor home on February 20 - that’s one week before her body was found, and therefore one week before he even had her hand to be able to even begin the rehydration.

There wasn’t a clear statement during the trial that this print was compared against Danielle’s brothers. Yet there is some similarity between the fingerprints of family members, they are sometimes even strikingly similar. Was it even checked on size of hand? Were any of the many other prints in the motor home checked against her brothers? A match would have proved they had been in the motor home, implying that Danielle may also have been there earlier, which would have seriously weakened the case against Westerfield. Similarly, those prints apparently weren’t checked against other neighborhood children. Which is not surprising. But a match would have made it more likely that the van Dam children had been in that vehicle.

Some of the many fingerprints found in Danielle’s home weren’t identified - they weren’t from either Westerfield or people known to have been in that house. These included a print on the handrail of the stairs with an unusual orientation: backwards or upside down, the hand crossed over in front of the body onto the handrail, possibly as though the person lost their balance - as might happen if they were carrying a kidnapped child. And these prints were not run through IAFIS, even though some of those prints could have been from the kidnapper, if it wasn’t Westerfield. They could have come from a known burglar or even known sex offender. This failure is particularly inexplicable and egregious, especially seeing that Graham “worked on Westerfield exclusively for months”, and “had support from several other latent print examiners”. Neil added that “His testimony was extremely effective, placing Danielle, possibly alive, on Westerfield’s motorhome bed”. Given the location of the print, its height above the bed, it’s difficult to see how it could have got there from a dead Danielle - or, for that matter, from a bound Danielle. She was free to move around. So it’s more consistent with an innocent prior visit. Especially as this print wasn’t only close to his bed, it was also close to the motor home window. A child exploring or playing in this interesting vehicle is likely to have looked out the window - and jump on the bed.

Neil’s article states that polygraph results are not admissible in court but doesn’t say why. It’s for a very good reason: they are not reliable, they get it wrong too often. Polygraphs may well be “the most accurate means available to determine truth and deception”, as claimed by the American Polygraph Association, but even they only claim an accuracy rate of 98%, and that’s only “when administered by a competent examiner”, and when the effect of outside factors is eliminated. In a 2008 interview with the San Diego Union-Tribune, Tom Kinney, one of the examiners mentioned by Neil, stated that “Depending on how specific the issue is, the reliability goes up to as high as 95 percent. The more general or non-specific the questions are drops it down into the 80s”. According to Wikipedia, polygraph advocates claim only a 90% validity. In contrast, the National Academy of Sciences appears much more skeptical, stating that research “provides little basis for the expectation that a polygraph test could have extremely high accuracy”. And that’s because the physiological responses measured by the polygraph are not uniquely related to deception.

Danielle’s parents and their friends reportedly passed their polygraphs. But they had initially lied to the police (in some cases possibly only lied by omission), and they had for years concealed their unusual - and to many people, unacceptable - sexual activities (swinging) and illegal pot smoking, so one might expect that they had a better chance than most of deceiving a polygraph had they so desired. And I wonder if their examiners made allowance - and not too much allowance - for their emotional state resulting from the kidnapping - after all, Danielle was their daughter or friend’s daughter. Also, Westerfield was polygraphed on the first day he was available, but the parents and their friends apparently only the second day or later.

The polygraph examiner claimed that Westerfield failed his test with more than 99% certainty, but the test appears to have been faulty, if not actually fraudulent, and he (the examiner) admitted lying to Westerfield (so did he lie about him having failed?) - the police do lie to suspects. This is deeply disturbing because of the huge faith which the police put in polygraphs (as evidenced by the large number of examiners (four) and people (ten) they tested, and the fact that the examiner stated that, if Westerfield had passed, that would have been the end of it). Knowing this, the examiner should have been scrupulously careful to ensure the result was valid. In fact, he believed Westerfield guilty, and so expected and wanted him to fail. So did he take steps to ensure the desired result? He (the examiner) did three things which could have produced a false result. He kept the space heater on, even though Westerfield said he was uncomfortably warm; he changed the questions he said he was going to ask, even though he said he wouldn’t; and he kept adjusting the equipment: he constantly turned it up because it was giving too low a reading.

Westerfield explained his claimed failure by saying he was concerned about Danielle being missing, which is an eminently plausible reason. Also, he shook his leg a lot, which the examiner warned him would screw up the reactions; and he was feeling guilty about driving drunk the night Danielle went missing; and he was nervous. (That nervousness might sound suspicious, but Kinney said “They're all nervous, and you'd actually be worried if they weren't”.) But did he fail? Some details of his test are available. The test is based on various readings. His blood pressure went up a lot (was this apparent rather than real, because of the constant equipment adjustment?), but apparently not his respiration and galvanic skin response (even though he sweats a lot), and no mention was made of his pulse. It therefore seems completely unjustifiable to claim a 99% certainty of failure. The most which could be claimed is “inconclusive”, and one could even argue that he passed. Furthermore, a couple of days later, one of the detectives told Westerfield there were problems with the test (his lawyer thought it probably wasn’t set up correctly, which is consistent with the constant adjustment), and they wanted him to retake it, but his lawyer wouldn’t allow it. Worse still, someone, though not necessarily a member of the Polygraph Unit, leaked his supposed failure to the media, thereby convincing members of the public of his guilt, and tainting the jury pool.

In this case, the defendant and victim were neighbors, and there had been known prior innocent contact between them, including very recent contact. So the criminalists, wanting to be impartial and not implicate an innocent person, should have attempted to determine if any evidence they found could have been innocently left. Regrettably, they apparently made no attempt to do so. In particular, if they had found hairs from Danielle’s mother and brothers in Westerfield’s environment, and their number and location were similar to those from Danielle, then this would have strongly indicated that Danielle’s hairs were from an innocent prior visit. Also, he had vacuumed his motor home after the first brief inspection by the police, and it contained no evidence of Danielle, which could indicate that cross-contamination by law enforcement was responsible for at least some of the trace evidence of Danielle which was subsequently found. Furthermore, most of the incriminating evidence (mainly dog hairs) was found in a lint ball in his trash can. It was from his dryer, and so was probably from laundry which was done before the kidnapping, and therefore was not evidence of guilt.

And the criminalists apparently didn’t examine the contents of the van Dams’ vacuum cleaners. If they had contained many of her hairs with roots - or her missing earring backing - it would have indicated she was assaulted in her own home, and therefore it was most unlikely that Westerfield was the perpetrator. Neil’s article doesn’t mention the blood found on Danielle’s bed and clothing - several stains but admittedly only a small quantity - which could have supported such a scenario. Her article states that a criminalist performed DNA analysis on items from Danielle’s bedroom, but doesn’t say that he found nothing implicating Westerfield. Combined with their failure to find any evidence of him anywhere in Danielle’s home - no blood, no hair, no DNA of any sort (despite his claimed propensity for profuse sweating), no fingerprints, no fibers, nothing, despite the hour or so he would have spent in that house, according to the prosecution scenario - all of this could - should - have given the Crime lab personnel doubts as to whether Westerfield was the culprit.

The blood found in Danielle’s room came from different people: her, probably her older brother, possibly her younger brother or mother, and some other unidentified person (persons?). While it may be understandable that the criminalists didn’t determine which van Dams the blood came from, why didn’t they use CODIS for the unidentified blood?

The Crime Lab will doubtless respond that they didn’t have the time to do all that extra work above. In which case, what was the ethical thing for them to have done in such circumstances? Keep quiet and leave it to the defense to raise these issues? And if the defense doesn’t raise them? Testify to the above and the resulting uncertainty at the trial, without being asked? Warn the DA beforehand and give him the opportunity to withdraw the charges?

There were two small stains of Danielle’s blood in Westerfield’s environment: one on his jacket and one on his motor home carpet. But the criminalists said they can't be dated, so they couldn’t tell if they were made before or after the kidnapping, and therefore whether or not they were evidence of guilt.

Jacket stain:

The small and faint stain of her blood reported on his jacket was considered the most powerful piece of evidence against him. He had handed in this jacket to his regular dry-cleaners on the Monday morning on his way home, and they had cleaned it. The police collected it from the dry-cleaners on the Thursday.

One might have expected the criminalists to have immediately inventoried the items from the dry-cleaners, and to have numbered them and inspected them, noting possible evidence, and taking quality photos of it, but that didn’t happen here. It’s not even clear from the trial testimony exactly what photos were taken. A photo was taken of the jacket while still in the dry-cleaner’s plastic cover: the critical stain could not be seen on the enlargement of that photo which was shown in court. And apparently all the remaining photos were only taken after pieces of that stain and other stains had been cut out for testing. And a Polaroid camera was used, as the then Assistant Criminalist (who was promoted to Criminalist in between the Preliminary Hearing and the trial) hadn’t been trained in 35 mm photography. There are inconsistencies in the trial testimony as to who numbered the evidence (Lealcala or Soriano), when it was numbered, and what number it was given. It was only inventoried on the following Monday, and that crucial evidence stain was apparently only first noticed on the Wednesday - so after it had been in police custody for almost a week. And the cleaners did not see that stain, so there is no evidence that anybody saw it until long after it had been seized by the police. Furthermore, the lead prosecutor thought that dry-cleaning should have removed a blood stain.

The jacket contained four stains which appeared to be blood. There are published photos of those sections of the jacket from which two of the stains had been cut out. One of those sections has the evidence number written on the jacket, the other one hasn’t: why not? Especially if that was the one containing Danielle’s blood. (If it wasn’t the relevant stain, then why was it considered important enough to be published?) The defense attorney’s cross-examination of the criminalist suggests that the close-up photo of the Danielle stain doesn’t include a ruler.

Even though one of the criminalists who processed that stain had been trained in blood spatter, it wasn’t analyzed for spatter. So it wasn’t determined how it got there, if it was the result of spatter or transfer.

The Crime lab didn’t send the stain itself to an outside lab for a confirmatory DNA test. Instead, they sent DNA which had been extracted from the stain. So the outside lab could only confirm that the extract matched Danielle, they couldn’t confirm that the extract was actually from that stain.

Carpet stain:

This was a single drop of blood. The criminalist first tested it for blood, but this test disturbed the carpet fibers, after which it could not be clearly seen, so she didn’t take a photo of it, nor did she measure it or even note the approximate size - from memory, she said it was about a quarter of an inch in diameter. (A photo was taken of a small stain on a curtain by the driver’s seat, even though that was a bit smeared, and it was unlikely that a kidnapped child would have been in that location.) And it was only numbered days later - which could explain why it was given a higher number than that of the carpet it came from (except that this was not done with the bedspread stain which was also only numbered later: the bedspread is 48 and the stain 48A). The Crime lab’s test didn’t show a DNA type for one of the 13 markers, but the outside lab’s confirmatory test did. Did the latter have more sensitive equipment? Because the failure to show a DNA type could indicate that the blood was starting to degrade (implying it was an old stain), and degrading of biological material doesn’t reverse.

Neil’s article doesn’t mention hair evidence, yet that played an important role in the case. There were many hairs found at the body recovery site, yet no mention was made of most of them during the trial. Were they all examined? The perpetrator’s hair could have been among them. In fact, one hair found in the debris under her body didn’t come from either Westerfield or Danielle, but wasn’t compared against anyone else. So a human hair found under the body of a murder victim was ignored because it didn’t come from the suspect. Supposing the suspect was innocent, and that hair came from a known sex offender? None of Westerfield’s hairs were found in Danielle’s home either.

The length of her hairs had evidentiary value, as she’d had a haircut shortly before the crimes, so any hairs longer than the length after that haircut must have been innocently shed earlier. And there were longer hairs, implying his innocence, but only slightly longer, so how accurate were the criminalists’ measurements, and did they reliably determine the longest hairs on her head? (The haircut was also shortly before the recent cookie sale, so all hairs shed during that visit would have been of the shorter lengths.)

Because of the recent haircut, any hairs which Danielle shed, whether during the cookie sale or during the kidnapping, should have had cut ends. In contrast, hairs shed at an earlier time would more likely have had split ends. So the criminalists were looking for hairs which may have been cut recently, and trial testimony did reveal a number of such hairs, none of which were hers. This seems to mean that none of her hairs in his environment had been recently cut, but instead were all old ones and therefore had been innocently shed previously, not even during the cookie sale, but that is surely not possible.

Many hairs had been collected from his environment (house, SUV, motor home and dry-cleaning). Only those hairs which, based on a visual examination (which is not very reliable), they thought might have come from Danielle, were subjected to further examination. So hairs from her mother and brothers could have been ignored, yet that could have helped determine if the Danielle hairs found had been innocently shed there, and so have helped determine the truth.

The criminalists used DNA to determine which of the visually selected hairs might be Danielle’s. Although apparently half of them had roots, they only used a nuclear DNA test on one of the hairs, and mitochondrial DNA tests on the others. So some of the hairs which were said to be Danielle’s, might in fact have come from a maternal relative - specifically her mother or brothers. (Both her brothers had short hair, so only the shortest hairs could have come from them. Her mother’s hair had been color-treated, so hairs which appeared to have been color-treated were excluded during the visual examination, but this was not a reliable test, as some treated ones had passed the initial inspection.) The mitochondrial DNA test destroyed the evidence tested, so if the root end of the hairs were used for the test (as it usually is), then afterwards nuclear DNA testing couldn’t have been done to establish if those hairs came from only Danielle. If it had been determined that some of those hairs were from a family member other than Danielle, it would have weakened the case against Westerfield. Especially if any of the “Danielle” hairs on his bed were actually from another van Dam. Yet one of the criminalists thought that the brothers’ DNA wasn’t a real issue, and that non-Danielle hairs in his motor home - which could have included her mother’s or brothers’ hair - wasn’t important at that stage.

The prosecution expert from a private forensics DNA laboratory said that he couldn’t say how long any of the hairs had been in the location they were in, or how they had got to that location.

The criminalists also seemed to ignore the fact that Danielle’s hair was darkening. So newer hairs were brown at the root and blonde at the tip. This implies that hairs which were all blonde were ones which had been shed some time previously - in other words, weren’t evidence of guilt. And all three of her hairs in his motor home - which included the only one which had been nuclear DNA tested and so was definitely hers - were all blonde. The fact that this one hair only gave a DNA profile on 12 of the 13 locations implies that it was starting to degrade, thereby reinforcing the belief that it was an old hair.

They also seemed to ignore the fact that the total number of “Danielle” hairs in his environment, at only 14, was very little for the long (maybe 2-day) prosecution kidnapping, assault and murder scenario. And they ignored the fact that most (11) of those hairs were in his house, with very few (only 3) in his motor home, which is consistent with them having been shed in his house during the cookie sale (primary transfer), and then being transferred - probably on his clothing and linen - from there to his motor home (secondary transfer). It is not consistent with the prosecution scenario of Danielle spending far more time in his motor home than in his house.

The six “Danielle” hairs on his bed were touted as proof positive that she was assaulted in his bed. Yet there was no blood or other evidence there. So this evidence is much more consistent with those hairs having been shed onto his laundry during the cookie sale, and then being taken on the laundry to his bed. Furthermore, though this may come under the Trace Evidence Unit rather than the Forensic Biology Unit, only one of those six hairs was on the pillowcase, which is where you might have expected all of them to have been. And the next most likely place might have been the fitted sheet - the upper surface of that sheet adjacent to the pillow. But only two were on that sheet, and trial testimony didn’t state which surface or where on that surface. Did the criminalists even note that information? It could have pointed strongly to his innocence. None of the three hairs in his motor home were in the bedroom area. Which again is not consistent with the prosecution scenario.

I am mentioning these inconsistencies because the criminalists are supposed to be professional, so anything which didn’t fit should have been a red flag to them.

There was no mention during trial testimony of any foreign human hairs being found while searching Danielle’s house. Yet, just as foreign fingerprints were found in that house (but not investigated further), so it is likely that there were also foreign hairs there (which were also not investigated).

Hairs which, based on a visual examination, could have come from the van Dams’ dog, were found in Westerfield’s environment. But, as was the case with Danielle’s hairs, those in his house (19) greatly outnumbered those in his motor home (4, including those at the dry-cleaners), which is inconsistent with Danielle spending much more time in the motor home, and points instead to transfer from the house following the cookie sale (or a brief prior innocent visit to his motor home). But contrary to the human hairs, none of the dog hairs in his house were found on his bed, though two were found on a motor-home comforter (at the cleaners).

The criminalist didn’t know the shedding rate for dogs, but as they have a much greater area of their body densely covered in hair, the 23 hairs found does not seem excessive for a short visit.

None of those hairs yielded nuclear DNA results, but that’s normal for animals due to a lack of rooting material. Mitochondrial DNA testing was then performed, which obtained matches on some of the hairs. However, this is not as powerful with dogs as it is with humans, and there were only 267 dogs in the outside lab’s database, so it is less certain that these hairs came from the van Dams’ dog. The criminalists apparently didn’t examine any other dogs in the neighborhood to ascertain if those hairs could have come from any of them.

There were many other animal hairs found in his motor home, so one might have expected at least some animal hairs to have been found with the body, but none were reported. Did the criminalists look? Matching hairs would have strengthened the prosecution case. Also, there were teeth missing from her mouth, and it was suggested that rodents might have taken her hair or teeth. Finding rodent hair with the body would have supported that theory.

Notorious San Diego Child Killer Gets First Appeals Hearing, 16 Years After Death Penalty Verdict

The victim’s mother says the killer’s request for a new trial is “frivolous and without merit.”
By Paul Krueger
Published Nov 7, 2018 at 6:33 PM | Updated at 6:29 PM PST on Nov 9, 2018

Sixteen years after a jury sentenced David Westerfield to death for the murder of 7-year-old Danielle van Dam, the state Supreme Court heard Westerfield’s first challenge to his death penalty verdict.

Danielle disappeared from her Sabre Springs home in February, 2002.

Volunteers searched everywhere, and almost a month later found her badly decomposed body in the underbrush off Dehesa Road in El Cajon.

Six months later, a jury convicted Westerfield who lived across the street from the van Dam family. Jurors found him guilty of murder in the course of kidnapping, kidnapping and possession of child pornography and sentenced him to death.

Westerfield has been on California’s death row ever since.

At a hearing Wednesday in Sacramento, the seven-member Supreme Court heard Westerfield’s automatic appeal of that death penalty.

In a 490 page legal brief, first submitted seven years ago, Westerfield’s lawyer outlined 28 reasons why his client deserves a new trial.

Among those arguments: the trial judge, William Mudd, wrongly denied Westerfield’s motion to suppress certain evidence; the child pornography charges should not have been heard at his trial, there was insufficient evidence of kidnapping to support that guilty verdict; and Judge William Mudd should have sequestered the jury, to prevent members from being exposed to prejudicial publicity.

Greenberg said unrelenting news coverage, emotional, public displays of support for the van Dam family, and the “stalking” of three jurors outside the courtroom could have influenced the jury.

"All of these things were intruding into the courtroom,” Greenberg argued. “Full sequestration of the jurors was appropriate, and if not (during presentation of the evidence), then certainly during deliberations."

Greenberg argued that keeping the jury away from family, friends and the media by closely guarding their privacy and putting them in hotel rooms at night was required for such an emotional, high-profile case.

Deputy Attorney General Robin Urbanski disagreed.

"The trial judge was constantly, daily, reminding the jurors about their obligations to shield themselves from outside influence,” Urbanski told the justices “As issues came up, the court addressed them."

Westerfield was not present for Wednesday's 30-minute hearing. The justices will issue a ruling within 90 days.

If Westerfield loses his first appeal, he has other legal avenues to challenge the jury verdict.

That process could last decades and it’s possible that Westerfield, now 66 years old, could die in custody before his appeals are exhausted and before he’s executed.

District Attorney Summer Stephan said the 16-year wait for Westerfield’s appeal highlights a shortcoming in the legal system.

"It's not fair really, to either side, the way the system stalls,” Stephan told NBC 7. “Delay is not really a friend to justice."

Stephan said she hopes voter approval of a death-penalty reform ballot measure in 2016 will speed up the process.

The new law directs the state court system to complete death penalty appeals within five years.

"Are there errors (in jury verdicts)?," Stephan asked rhetorically. "Is there any chance of innocence? Those are very important (questions), but you can have that done within five years."

Defense attorney Bob Boyce disagrees. He was one of Westerfield's trial attorneys, and though legal ethics prohibit him from discussing Westerfield's case, Boyce is outspoken about what he feels are fatal flaws with capital punishment.

"The biggest problem with the death penalty is the cost of the death penalty," Boyce said. He points to studies that show the state could save $150 million a year by switching to a sentence of life-in-prison with no chance for appeal, for the most heinous crimes.

Boyce also said the death penalty is not a deterrent, and he believes that some inmates are wrongfully convicted, despite their lengthy appeals. "There are case-specific examples of people that we learned, after the fact, were actually innocent, that have been put to death," he said.

Boyce thinks the goal of a five-year appeals process is unreachable, because capital cases require legal expertise and experience, intense research and expert analysis of evidence, and more money that the state is willing to spend.

“We believe that the appeals are frivolous and without merit, and are unnecessarily dragging this case out,” van Damn said in a statement to NBC 7. “There was a full and complete legal defense presented by his qualified attorneys at trial, which put our family and all of San Diego through the ringer. It's time for the jury's verdict to be honored and justice given to Danielle.”

Thank you for that link. I did know about the hearing - the oral arguments in his appeal. Did any other media report it?

I agree with Greenberg. With an angry crowd outside the courtroom, and especially with some jurors being followed to their cars, juror sequestration was not just appropriate but also necessary. It’s all very well for Urbanski to argue that the judge constantly reminded the jurors about their obligations, but that didn’t shield them from the anger, and how would that have quelled their fears? People are constantly reminded not to drink and drive, but many do so anyway.

I fully agree with DA Summer Stephan that 16 years is too long to wait for an appeal. But while it might not be fair for the victim’s family, it’s especially unfair for an innocent person sitting on death row! And his family.

I believe that the evidence in this case points strongly to innocence, and it was only because of fear and emotion that the jury voted otherwise - and who wouldn’t have been afraid with that angry crowd outside the courtroom? It would have been intimidating. A five-year delay in the trial should have been adequate for that community anger to have died down - there wouldn’t have been that angry crowd greeting the jurors. And five years should be adequate for the appellate judges to objectively evaluate the appeal, and anyway their emphasis is on legal technicalities, which shouldn’t be that affected by fear and emotion. However, Robert Boyce might be right that the proposed five year limit “is unreachable, because capital cases require legal expertise and experience, intense research and expert analysis of evidence”. Currently, due to the small number of overworked appellate lawyers, he is definitely right.

I disagree with Boyce’s suggestion to replace the death penalty with life without option of parole. That is also a very severe sentence which therefore justifies an automatic appeal. I also partly disagree with him that the death penalty is not a deterrent: I think it is sometimes a deterrent. But I agree with him that innocent people have been put to death. And Westerfield could be one of the next.

Speaking generally, if there is new evidence, then the conviction must be reviewed, and promptly. Irrespective of the sentence and irrespective of any entitlement to an appeal. I’m thinking of DNA evidence of course, though that would rather apply to convictions in the more distant past. Currently, there is concern about “junk science”. Such as convictions based on bite marks, which is now largely discredited. And police misconduct, such as the fabricating of fingerprint evidence by New York State Police.

Brenda has been convinced of Westerfield’s guilt since long before the “guilty” verdict. She wouldn’t even allow the defense into her home (thereby potentially weakening the case they were able to present). She would probably admit that juries do sometimes make mistakes, but would be adamant that this jury didn’t. And I think many people share that view. As can be seen in the title of this article, which describes him as “notorious”. If she had her way, he would just be executed, without even being allowed his appeal. I wonder if she’s even read his 490 page appeal. I think the police and prosecution, starting long before he was arrested, persuaded the media that he was guilty, and the media persuaded the community, tainting the jury pool - and maybe also the judges who are now deciding his appeal. So it was always going to be an uphill struggle for the defense, and the judge didn’t do nearly enough to ensure fairness.

The very first Search Warrant, No. 27818 (despite later ones having lower numbers), on which the others depended, permitted the police to search a house on Mountain Pass Drive with a red tile roof; they instead searched a house on Mountain Pass Road with a gray roof and which was probably shingles.

It permitted them to seize unlaundered clothing: they instead seized clothing which had already been laundered. They also seized clothing which apparently didn’t contain any of the listed substances (blood, blood stains, human hairs, tissues or secretions). They also seized linen which apparently contained none of the listed substances either.

And they seized items containing dog hair, whereas only human hair was specified.

They were permitted to seize photos etc. which demonstrated a preference of juveniles - so not persons who just might have been juveniles; and anyway, his photos etc. demonstrated a strong preference for mature women, but they seized them anyway.

I don’t think it would be an exaggeration to say they just seized anything they wanted, whether it fell within the specified restrictions or not. You could even say they were out of control.

I wonder about the certainty of it all. I am opposed to a death penalty for any person, even heinous criminals. I am not opposed to super maxx prisons and life without parole but death---no. So where is the case at now? What happened as a result of that hearing?